A landowner owes invitees two independent duties: “(1) to maintain the premises in a reasonably safe condition, and (2) to give warning of concealed perils.” Cruz-Haymer v. Festival Food Market, Inc. So.3d , 38 FLW D1581 (Fla. 4th DCA 7-24-2010 and Burton v. MDC PGA Plaza Corp., 78 So. 3d 732, 734 (Fla. 4th DCA 2012).
Landowners like to believe that where a dangerous condition is open and obvious, the victim should not be able to maintain a lawsuit for negligence. The idea relies on the proposition that “[t]he obvious danger doctrine provides that an owner or possessor of land is not liable for injuries to an invitee caused by a dangerous condition on the premises when the danger is known or obvious to the injured party ….” Aaron v. Palatka Mall, L.L.C., 908 So. 2d 574, 576-77 (Fla. 5th DCA 2005) (citing Ashcroft v. Calder Race Course, Inc., 492 So. 2d 1309 (Fla. 1986)).
However, the landowner’s notion of absolute immunity ignores two important legal principles: (1) fault is not eliminated if “the owner or possessor should anticipate the harm despite the fact that the dangerous condition is open and obvious,” Id., and (2) the obvious nature of the danger creates an issue of fact regarding the plaintiff’s own comparative negligence. Burton v. MDC PGA Plaza Corp., 78 So. 3d 732, 734 (Fla. 4th DCA 2012); Fieldhouse v. Tam Inv. Co., 959 So. 2d 1214, 1216 (Fla. 4th DCA 2007). (“A plaintiff’s knowledge of a dangerous condition . . . simply raises the issue of comparative negligence and precludes summary judgment.”) (citation omitted).
There is no denying that open and obvious dangerous conditions can sometimes present problems for a plaintiff’s case. However, the difficulties should not be viewed as insurmountable.
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